Irwin v. Muir — 13 How. Pr. 409

Majority

p. 409

NEW-YORK COMMON PLEAS.

Margaret Irwin agt. Lawrence L. Muir.

Headnote

Service of notice of appeal from a judgment of the marine court to the common pleas, need be made only on the clerk of the marine court Not necessary to serve it on the justices.

But the notice of appeal must state the grounds of the appeal. If not, the appeal may be dismissed, unless amended in that particular; which amendment may be allowed by the court.

New-York Special Term,

Feb., 1857.

--, for plaintiff.

--,for defendant.

A motion is made to dismiss the appeal from the judgment of the marine court to this court-, on two grounds:—

1st. That the notice of appeal was not served on all of the justices.

2d. That the notice of appeal does not contain the grounds of the appeal.

In answer to the first objection it is sufficient to say, that the notice was served on the clerk. Service on the clerk is all that is required by the statute; (§ 354 of the Code of Procedure;) and

p. 410

if the process of assimilation to the practice of the supreme court is to be extended by the act of 1853, so as to affect the notice of appeal, it is all that is required (§ 827) as to appeals in the supreme court.

The 353d section requires that the notice of appeal shall be served within twenty days after judgment, stating the grounds of the appeal.

The opinion of the justice in the court of appeals treats this section, as to the time of appealing, as still in force; as he says that the appeal is to be taken within twenty days after the decision of the general term of the marine court. If it remains in force in that respect, I see no reason for considering the residue of the section as affected by the act of 1853. There is nothing in it inconsistent with that act, and it is only what is inconsistent that is repealed thereby.

If there remain any appeal to this court, such appeal can only be made by serving a notice, as is provided by § 353, specifying the grounds of appeal.

We held, in Griswold agt. Van Deusen, (2 E. D. Smith, 178,) that the want of such a notice was sufficient ground for the dismissal of an appeal; and we have also held, in July, 1856, that such a notice was amendable by inserting the grounds of appeal.

The application of the decisions in these cases will dispose of this motion..

The motion must be granted, unless the appellant, within ten days, amend the notice of appeal by serving a new notice containing the grounds of appeal, and pays the costs of this action—$10.